CASEY PIATT, BRUCE DAVIS, TAMMY DAVIS, MICHAEL CORTES, JOHN R. FALZONE, MADELINE MCKENZIE, TERRY BOWEN, FRED SIENA, BRUCE VANMETER, KEVIN CARTER, MARK MEZIS, STEVEN DAVIS, FRED PIERCE, JR., JONATHAN JESTER, VINCENT WOODRUFF, EDWARD POMPPER, ROBERT BROBST, CHESTER OGDEN, BRIAN TRUXTON, DAWN COSSABOON, ANTHONY MADDEN, JAMES ROSS, JAMES PITTMAN, JOSE L. DELATORRE, JOHN L. MURRAY, GREGORY W. WILLIAMS, DENNIS TURNER, GERALDINE COX, EVA SOOY, JOSEPH KARKOCHA, LINDA SCYTHES, ALICE B. POYNTOS, CHARLES BURKHART, BRIAN HORNER, JAMES SMITH, FARZIN AFSHARKHAH, JOSEPH RAWS, SAMUEL CROWE, CHRIS CLINE, RAY DILKS, FRANK SPENCE, ROBERT W. MUSSO, RONALD DOWNS, ANNIE STREET, JERE GRIFFITH, RICARDO S. BASA, BILLY WHILDON, JOHN CALDWELL, MICHELLE DEVITO, EDMOND READ, MICHAEL POLOFF, EDWIN DIAZ, WAYNE PEARSON, CLYDE KOERNER, GWENDOLYN STREET, LORENZO L. HARRIS, BRIAN K. HILL, JAMES H. WILDEN, JR., DARLENE HOLT, EDWARD C. LEMATTY, III, ALFRED PIERCE, RICHARD HAWN, ANGELO GALARZA, DONNIE TOMLIN, MARVIN L. JOHNSON, BILL FOWLER, JACK B. SIMPKINS, DOUG DelCOLLO, RON SLADE, RICK ROBBINS, WILLIAM WHILDIN, JOE CAMBURN, DAN HAYES, THOMAS PLUTA, MARK LATTANZI, MICHAEL SCATES, DANIEL PIATT, CHRIS LEE, L. SANFILIPPO, LAWRENCE DUSKI, DENNIS A. GUNN, RIGOBERTO GONZALEZ, DAVID PRICE, PAMELA BROWN-DAIRSOW, PATRICIA WHITE, RANDELL BYERS, LISA WRIGHT, ALBERT RIVERA, JAMES HARROLD, GEORGE O. MCCONNELL, LARRY SAUL, GLENN CHAPMAN, ESTTE KINZEL, ROBERT BRENNER, ISRAEL REYES, EDWIN M. ZAYAS, EVEANNE M. STINSON, and FRANK MANTEGNA, Plaintiffs-Appellants, v. POLICE AND FIREMEN‘S RETIREMENT SYSTEM, NEW JERSEY DEPARTMENT OF CORRECTIONS, and STATE OF NEW JERSEY, Defendants-Respondents.
DOCKET NO. A-5504-12T1
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
November 18, 2015
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
November 18, 2015
APPELLATE DIVISION
Before Judges Sabatino, Guadagno and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-44-11.
Mario A. Iavicoli argued the cause for appellants.
Jeff S. Ignatowitz, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Ignatowitz, on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Plaintiffs appeal, claiming that the PFRS thirty-five-year age limitation cannot be applied to State corrections officers. However, the long history of PFRS makes clear that the Legislature intends to restrict PFRS membership to a person who is “not over 35 years” when he or she becomes a “policeman” or “fireman.”
I.
In 2003, plaintiff Casey Piatt and sixty-two other plaintiffs filed a complaint in federal district court, challenging the application of the age restriction to corrections officers under the federal Employee Retirement Income Security Act (ERISA),
After defendants answered the complaint, the action was transferred to Mercer County.3 Plaintiffs filed a motion for partial summary judgment. Defendants filed a cross-motion for summary judgment.
After hearing two days of oral argument, Judge Carchman issued a twenty-five-page oral opinion on May 29, 2013. In the
First, restricting enrollment in this way benefits the public fiscally as fewer individuals are permitted to enroll, and secondly, and perhaps more importantly, this restriction benefits public safety as it provides an incentive for individuals to become corrections officers earlier in their career and to be able to retire earlier[,] allowing for what has been statistically established as a more fit and higher energy workforce.
By order dated June 5, 2013, Judge Carchman denied plaintiffs’ motion, granted defendants’ motion for summary judgment, and dismissed the complaint with prejudice.
II.
Plaintiffs appeal the grant of summary judgment. Summary judgment must be granted if the court determines “that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.”
III.
To properly address plaintiffs’ claims, we review the statutory and regulatory history of the age limit, and of the inclusion of corrections officers as “policemen” under the PFRS Act,
The PFRS Act was originally adopted in 1944.
The PFRS Act allows the PFRS Board of Trustees to establish rules and regulations.
The Legislature repeatedly amended the definitions of “policeman” and “fireman” in
Eligibility for membership in the Police and Firemen‘s Retirement System of New Jersey shall be extended to all active, permanent and full-time officer employees of the State of New Jersey with police powers and holding one of the titles cited in section 1 of
P.L.1944, c. 255 ([N.J.S.A. ] 43:16A-1) who are otherwise eligible in accordance with the provisions of this act.
Also under the 1973 supplementary act, State corrections officers “then enrolled in PERS were offered a one-time opportunity to transfer their retirement fund membership to PFRS without cost and without regard to age” if they did so within ninety days. Koschker, supra, 233 N.J. Super. at 212 (citing
The 1973 supplementary act “did not, however, abolish the 35 year entry-age limitation; it was merely suspended. After the 90 day ‘window of opportunity’ elapsed, enrollment in PFRS was again limited to employees 35 years old or younger.” Ibid.
Each new officer who begins employment following the effective date of this 1975 amendatory and supplementary act, shall be required to enroll in the Police and Firemen‘s Retirement System of New Jersey as a condition of employment, provided he is otherwise eligible for membership by meeting the appointment, age, and health prescriptions required of all members.
[
N.J.S.A. 43:16A-63(b) (emphasis added).]
A confused period of changing laws and interpretations followed the application to the States of the federal Age Discrimination in Employment Act (ADEA),
Indeed, in Allen and Koschker, we premised our decisions on the applicability of the thirty-five-year age limit to corrections officers. In Allen, we noted that, although Allen was appointed to a PFRS-eligible position as a State corrections officer, he “was not age-eligible to join PFRS because employees
In 1989, the Legislature “eliminated the prior definition of policeman [under
The 1989 amendment provided a functional definition of a “policeman” which logically if not explicitly would include a State corrections officer:
“Policeman” shall mean a permanent, full-time employee of a law enforcement unit as defined in section 2 of
P.L.1961, c.56 (C.52:17B-67) or the State, other than an officer or trooper of the Division of State Police whose position is covered by the State Police Retirement System, whose primary duties include the investigation, apprehension or detention of persons suspected or convicted of violating the criminal laws of the State and who:(i) is authorized to carry a firearm while engaged in the actual performance of his official duties;
(ii) has police powers;
(iii) is required to complete successfully the training requirements prescribed by
P.L.1961, c.56 (C.52:17B-66 et seq.) or comparable training requirements as determined by the board of trustees; and
(iv) is subject to the physical and mental fitness requirements applicable to the position of municipal police officer established by an agency authorized to establish these requirements on a Statewide basis, or comparable physical and mental fitness requirements as determined by the board of trustees.
[
N.J.S.A. 43:16A-1(2)(a) (emphasis added).]
Finally, the 1989 amendment made clear that “[n]othing in this amendatory and supplementary act shall be construed as authorizing” the “enrollment in the retirement system of any person who was ineligible for membership” previously.
The 1989 amendment “was part of a series of amendatory laws intended to increase the retirement allowance of police officers and firefighters[,] and restrict and reduce membership in PFRS” to pay for those increased benefits. Prosecutors, supra, 301 N.J. Super. at 559. To meet that goal, the Legislature stressed the importance of the requirement that persons seeking to enroll in PFRS be appointed by the age of thirty-five:
The articulated objective was to encourage police officers and firefighters to “retire[] at a younger age, in order to protect the public.” It was said in the legislative hearings that police officers and firefighters were to be given enhanced benefits “because the nature of [their] duties . . . requir[ed] a level of physical attributes [and energy] which [are] found, statistically speaking, among younger members.” The underlying idea was to
“facilitate” early retirement and “turnover within the system” by “giv[ing] better benefits.” [Id. at 559-60 (quoting Hearing on S. 2602 Before the Assembly State Gov‘t Comm., 203rd Legis., 2d Sess., at 18 (Feb. 6, 1989) (Statement of Douglas Forrester, Director, Div. of Pensions)) (alterations in original).]
We have found that the 1989 amendment‘s “acknowledged purpose [was] to restrict eligibility and to reserve to the young and the fit active roles in police and firefighter activities.” Id. at 560. Indeed, the 1989 amendment, like the 1973 supplementary act, required that a person employed in a position subsequently “covered by the retirement system is required to enroll in the retirement system as a condition of employment, provided the person is otherwise eligible for membership by meeting the appointment, age and health requirements prescribed for all members.”
In 1993, the Legislature passed another supplementary act providing that “any correction officer . . . employed on the effective date of this supplementary act in the Department of Corrections who is enrolled in PERS” was “eligible, regardless of age,” to “transfer membership from PERS to PFRS . . . by waiving, within 90 days of the effective date of this supplementary act, all” PERS benefits.
This 1993 supplementary act was an exception that proves the rule governing current State corrections officers such as plaintiffs. The language and history of the PFRS Act shows that the thirty-five-year age limit long enshrined in
IV.
Plaintiffs argue that there is no statute that explicitly requires that State corrections officers, when appointed, must be no older than thirty-five to be eligible for PFRS. To the contrary, that limitation is set forth in the same operative provision of the PFRS Act which makes any qualifying person “a member in this retirement system,” namely
As set forth above, PFRS pensions are available only to a “policeman or fireman.”
Plaintiffs argue that they are law enforcement employees, and that it is “[t]he definition of ‘policeman’ in
Moreover, both the 1975 and 1989 amendments expressly provided that each new officer must be “otherwise eligible for membership by meeting the . . . age . . . requirements prescribed for all members.”
Plaintiffs cite language in
The Legislature repeatedly, over many decades, added State job titles to those definitions, and then in 1989 included any law enforcement employee of “the State” as a “policeman,” and any employee of a firefighting unit of “the State” as a
We cannot ignore the Legislature‘s inclusion of State employees in the definition of “policeman” and “fireman” in
Thus, we read
Moreover, our reading does not render redundant the quoted language in
“‘When interpreting different statutory provisions, we are obligated to make every effort to harmonize them, even if they are in apparent conflict.‘” St. Peter‘s Univ. Hosp. v. Lacy, 185 N.J. 1, 14 (2005) (quoting In re Gray-Sadler, 164 N.J. 468, 485 (2000) (finding one statute‘s instruction to provide a benefit qualified by a proviso in another statute)). We have “‘an affirmative duty to reconcile them, so as to give effect to both expressions of the lawmakers’ will.‘” Ibid. (citation omitted).
The obvious reasons for restricting the age of enrollment were reiterated by the Legislature in its 1989 amendment, which incorporated State corrections officers into the current definition of “policeman.” The Legislature‘s “acknowledged purpose [was] to restrict eligibility and to reserve to the young and the fit active roles in police and firefighter activities.” Prosecutors, supra, 301 N.J. Super. at 560 (upholding the exclusion of assistant county prosecutors from PFRS).
The Legislature‘s purpose is achieved by reading the Legislature‘s acts and amendments as making eligible for PFRS only those persons who become State corrections officers when they are not over thirty-five. As Judge Carchman observed, the Legislature imposed this requirement to encourage persons to become State corrections officers when they have “‘a level of
Plaintiffs argue that municipal firefighters and police officers cannot be hired if they are “over 35 years of age,”
Finally, plaintiffs argue that excluding from PFRS those persons who become State corrections officers when over thirty-five is contrary to the requirement that a “policeman” or “fireman” become a member of PFRS “as a condition of his employment.”
V.
“Our construction of the statute is also supported by the long-standing administrative practice and interpretation of the Division of Pensions.” Prosecutors, supra, 301 N.J. Super. at 561. For more than four decades, the PFRS Board‘s regulation interpreting these statutes has provided that all applicants for PFRS membership must be no older than thirty-five.
Our deference is even greater because the Board has followed this interpretation for more than four decades. “Such continued interpretation and practice by the agency which
Plaintiffs challenge the validity of the Board‘s regulation. However, “regulations promulgated by an agency in furtherance of a statutory scheme it is charged with enforcing are presumed to be valid.” Election Law Enf‘t Comm‘n, supra, 201 N.J. at 262. “‘[T]he agency‘s interpretation of the operative law is entitled to prevail, so long as it is not plainly unreasonable.‘” Prosecutors, supra, 301 N.J. Super. at
Plaintiffs claim that
We have already found that the 1984 amendment only created “a 37-year entry-age on transferees from PERS during the 90-day period allowed by
Therefore, as Judge Carchman ruled, ”
the deference afforded regulations does not go so far as to permit an administrative agency under the guise of an administrative interpretation to give a statute any greater effect than is permitted by the statutory language. Nor can agency regulations alter the terms of a legislative enactment or frustrate the policy embodied in the statute. If a regulation is plainly at odds with the statute, the court must set it aside.
[Lourdes Med. Ctr. of Burlington Cty. v. Bd. of Review, 197 N.J. 339, 376 (2009) (citation omitted).]
However, plaintiffs have not carried their “‘burden of proving the rule is at odds with the statute.‘” St. Peter‘s, supra, 185 N.J. at 13 (citation omitted). Indeed,
VI.
Plaintiffs also contend that the thirty-five-year limitation violates the Equal Protection Clause of the United States and New Jersey Constitutions. However, “age is not a suspect classification under the Equal Protection Clause.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83, 120 S. Ct. 631, 646, 145 L. Ed. 2d 522, 542 (2000) (citing Gregory v. Ashcroft, 501 U.S. 452, 470, 111 S. Ct. 2395, 2406, 115 L. Ed. 2d 410, 430 (1991)); Boylan v. State, 116 N.J. 236, 250 (1989), cert. denied, 494 U.S. 1061, 110 S. Ct. 1539, 108 L. Ed. 2d 778 (1990). “Nor is the right to membership in PFRS rather than in PERS a fundamental right.” Simon, supra, 233 N.J. Super. at 197. Thus, “States may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest.” Kimel, supra, 528 U.S. at 83, 120 S. Ct. at 645, 145 L. Ed. 2d at 542; In re C.V.S. Pharm. Wayne, 116 N.J. 490, 502 (1989).
As Judge Carchman found, granting increased pension benefits to persons who become corrections officers when thirty-five years old or younger has a rational basis. See Boylan, supra, 116 N.J. at 250-51. We reject plaintiffs’ constitutional
Plaintiffs argue that turning thirty-five has not prevented them from being hired or performing their duties. Nonetheless, the Legislature could rationally have chosen to encourage younger persons to become State corrections officers with the incentive of a more generous pension.
Accordingly, Judge Carchman‘s grant of summary judgment was proper, because it is appropriate and constitutional for
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION